Opinion
No. 57496-5-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-11678-0, James D. Cayce, J., entered December 23, 2005.
Affirmed by unpublished per curiam opinion.
Although child hearsay from multiple sources is admissible even if it is cumulative, it is still subject to exclusion under ER 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Because we conclude the court in this case did not abuse its discretion in admitting child hearsay from several sources and because appellant Anthony Calderon's claims of ineffective assistance, prosecutorial misconduct, and insufficient evidence lack merit, we affirm his conviction for first degree child molestation.
The facts are not disputed and will be recited here only when necessary to explain our decision.
ANALYSIS
Calderon first contends the evidence was insufficient to support his conviction. Specifically, he contends there was no evidence that he had "sexual contact" with K.M. Noting that the legislature defines "sexual contact" as contact made for sexual gratification, Calderon argues that the evidence showed only inadvertent contact. This argument is meritless.
Evidence is sufficient if, after reviewing it in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) A sufficiency claim admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. Salinas, 119 Wn.2d at 201. We infer criminal intent from conduct and defer to the trier of fact in resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
"Sexual contact" is defined as a touching "done for the purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2). Sexual gratification is not an essential element of the charge, but rather defines the term "sexual contact." State v. Lorenz, 152 Wn.2d 22, 34-35, 93 P.3d 133 (2004). A showing of sexual gratification is required "because without that showing the touching may be inadvertent." State v. T.E.H., 91 Wn. App. 908, 916, 960 P.2d 441 (1998). A court can infer sexual gratification from the nature and circumstances of the act itself. See T.E.H., 91 Wn. App. at 916-17.
Here, the State presented evidence that Calderon touched K.M.'s genitals on numerous occasions, that K.M. had complained of "her privates hurting her," and that K.M.'s genital area was red and irritated when she made the latter complaint. K.M. stated that Calderon touched her by putting his hand inside her pants and underwear. The touching, which included touching inside K.M.'s vagina, almost always occurred while they were lying down on Calderon's bed and continued even when K.M. asked him to stop. This evidence permitted an inference that the touching was for sexual gratification. See State v. Whisenhunt, 96 Wn. App. 18, 23-24, 980 P.2d 232 (1999); State v. Marcum, 61 Wn. App. 611, 612 n. 1, 811 P.2d 963 (1991).
Calderon next argues in conclusory fashion that the court abused its discretion in admitting cumulative evidence. He contends that K.M.'s testimony, a DVD of an interview with her, and testimony of various adults she made disclosures to were needlessly cumulative and more prejudicial than probative. We disagree.
Child hearsay is admissible even when the child is available and competent to testify and even though the evidence is overlapping or repetitive. State v. Dunn, 125 Wn. App. 582, 588-89, 105 P.3d 1022 (2005). Such evidence is subject to exclusion under ER 403, however, if its probative value is substantially outweighed by the danger of prejudice caused by the needless presentation of cumulative evidence. State v. Bedker, 74 Wn. App. 87, 93, 871 P.2d 673 (1994). We review the admission of evidence challenged as cumulative for abuse of discretion. Dunn, 125 Wn. App. at 588. In this case, the court ruled that because the jury would not hear K.M.'s hearsay statements "that many times," any prejudice from cumulative testimony did not substantially outweigh its probative value. This ruling was within the court's discretion.
Only three witnesses testified to K.M.'s hearsay statements — her mother, a social worker who saw K.M. in the emergency room at Harborview Hospital, and Ashley Wilske, a child interview specialist with the King County prosecutor's office. The court also admitted a digital video disc (DVD) of K.M.'s interview with Wilske. The mother and social worker gave general and relatively brief descriptions of K.M.'s allegations. Wilske also said little on direct or redirect regarding her interview with K.M. The DVD of that interview, however, was relatively comprehensive and detailed. While there was some overlap between the hearsay testimony, the DVD, and K.M.'s testimony, the hearsay had significant probative value. The hearsay statements were made in very different contexts to people with very different roles in the case. Consequently, each of the witnesses provided slightly different facts and perspectives that assisted the jury in evaluating K.M.'s testimony. The DVD provided additional details and "visual and audio information . . . that went beyond repetition of other hearsay statements," Dunn, 125 Wn. App. at 588, and Wilske's testimony assisted the jury in understanding drawings and exhibits shown in the DVD.
Contrary to Calderon's assertions, Dr. Joanne Mettler of the Harborview Sexual Assault Center did not interview K.M. and did not testify to any significant child hearsay.
Having reviewed the evidence, we conclude the trial court was within its discretion in concluding that any prejudice from cumulative hearsay did not substantially outweigh the probative value of the evidence. See Dunn, 125 Wn. App. at 588-89 (admission of child hearsay from various witnesses and videotaped interview was not abuse of discretion even though victim testified and evidence was overlapping); State v. Smith, 82 Wn. App. 327, 333, 917 P.2d 1108 (1996) (no abuse of discretion where State did not call "numerous witnesses of the same type to say the same thing," but instead called a friend, police officer, and doctor who each had a different perspective that helped the State rebut defendant's assertion that sex was consensual); Bedker, 74 Wn. App. at 92-94 (child hearsay statute allows admission of hearsay statements because children are often ineffective witnesses; no abuse of discretion where hearsay admitted involved areas not covered in the child's testimony or initial disclosure).
Calderon also contends his trial counsel was ineffective when, during voir dire, he drew the jurors' attention to the fact that he was in custody and that an armed guard was present to make sure he did not escape. We disagree.
To prove ineffective assistance, Calderon must demonstrate both deficient performance and resulting prejudice, i.e., a reasonable probability that the outcome would have been different but for counsel's omissions. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption of effective representation, and a claim of ineffective assistance cannot be based on conduct that can fairly be characterized as a legitimate trial strategy. Id. at 335-36. The conduct challenged in this case was legitimate trial strategy.
Defense counsel began voir dire by asking the jurors about the presumption of innocence. He then pointed to an armed jail guard and asked the jury why he was present. Juror 38 responded that the guard was there for everyone's protection because anything could happen. Juror 1 stated that the guard might be there because Calderon was in custody. Defense counsel confirmed that his client was in-custody and stated that the guard was there to "make sure [Calderon] doesn't run out the door." Report of Proceedings (RP) (Sept. 27, 2005) at 41. Two other jurors later speculated that Calderon might not have been able to make bail or could be in protective custody.
Counsel then said, "Let's go back to this presumption of innocence. If you are presumed innocent why do you have to be locked up? What does that say about this idea of presumption of innocence? If the court can't presume he's innocent, how can you presume he's innocent?" Id. at 42. Several jurors responded that they could still presume Calderon to be innocent and that it was just a court procedure to have a guard present. Juror 46 agreed with the other jurors' statements saying, "[T]he detaining of someone does not in any way mean the Court feels they're guilty." Id. at 44.
We reject Calderon's claims of deficient performance because it is clear that counsel made a strategic decision to use the guard's presence and Calderon's custody to explore the jurors' views on the presumption of innocence. This was a legitimate strategy. As the State aptly observes, "[D]efense counsel merely outted [sic] the proverbial elephant in the room (i.e., Calderon was incarcerated) as a means to uncover any bias the potential jurors might have about his client. . . ." Br. of Respondent at 24. Because counsel's conduct can be characterized as legitimate trial strategy, Calderon's ineffective assistance claim fails.
Last, Calderon contends the prosecutor committed prejudicial misconduct in closing argument. A defendant claiming prosecutorial misconduct "bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Comments will be deemed prejudicial only where "there is a substantial likelihood the misconduct affected the jury's verdict." Id. at 561. The prejudicial effect of a prosecutor's comments is not determined by looking at the comments in isolation but by placing the remarks "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Id. at 561. Where the defense fails to object to an improper comment, the error is considered waived "unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Id. at 561. The absence of an objection by defense counsel "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Calderon contends misconduct occurred when, without objection, the prosecutor asked the jury to remember a famous picture from the Tiananmen Square Massacre of 1989.
When you look at that picture there are really two things which jump out in your mind. The first is how small that little protester looks standing just feet in front of those giant tanks. And the second thing that sticks out at you is just how scared that guy must have been, because the fact is that he knew that those tanks were being sent into that square to break up the protest in which he was involved, and he knew that when he got in front of those tanks they may not stop. He didn't know what was going to happen.
To six-year-old [K.M.], this 260 pound man right here looks every bit as big, scary, and menacing as that row of tanks must have looked to that protester. And just like that protester, when [K.M.] told her mom in 2004 that [that] big guy had been molesting her, she didn't know what was going to happen. She didn't know whether it would just stop. She didn't know whether it would keep going. She didn't know whether her mom was going to tell him what she said and that she would have to suffer his anger just like she had seen it taken out on her mom and her brothers and sisters.
That, ladies and gentlemen, is what makes little [K.M.]'s courage, the fact that she never told anyone, truly remarkable.
RP (Oct. 4, 2005) at 4-5.
Calderon argues that the prosecutor improperly vouched for K.M.'s credibility and appealed to the jurors' emotions. It is clear from the argument, however, that the prosecutor was not expressing a personal opinion regarding K.M.'s credibility. He was simply arguing an inference from the evidence. Calderon testified that he is five foot eight and 250 to 260 pounds. K.M. was eight at the time of trial and decidedly smaller in stature. She testified that she was scared to tell her mother about the abuse because she did not want her family to get hurt. The prosecutor's argument thus rested on facts in the record, not on personal opinion.
A prosecutor commits misconduct if his or her argument appeals to the jurors' passion and prejudice and invites them to decide the case on a basis other than the evidence. State v. Echevarria, 71 Wn. App. 595, 860 P.2d 420 (1993); State v. Russell, 125 Wn.2d 24, 89, 882 P.2d 747 (1994).
It is also clear that the prosecutor's argument was not designed to appeal to the jurors' emotions, but instead was intended to demonstrate why K.M. did not previously disclose the abuse and to establish her credibility. Implicit in the latter argument was the idea that K.M. would not likely put herself through such an ordeal unless she was telling the truth. This argument was proper. State v. Gregory, 158 Wn.2d 759, 808, 147 P.3d 1201 (2006) (approving of questioning and argument concerning the victim's difficulty testifying in court because it "focused on the credibility of the victim").
In any event, even assuming the remarks were improper, there was no objection and the remarks were isolated and not so flagrant and ill intentioned as to be incurable.
Our courts have found more inflammatory remarks curable. See generally State v. Bautista-Caldera, 56 Wn. App. 186, 195, 783 P.2d 116 (1989) (prosecutor exhorted jury to send a message to society about the general problem of child sexual abuse, stating, "`Let her and children know that you're ready to believe them and enforce the law on their behalf.'"); State v. Jones, 71 Wn. App. 798, 805-06, 863 P.2d 85 (1993) (argument applauding society's concern for children and criticizing the fact that frightened children are made "`to walk in through those two big doors as a very, very small person and walk up here in front of twelve people, twelve grownups whom they don't know, and sit in this chair in a courtroom such as this, with the defendant sitting right there, staring at them.'"); State v. Brown, 35 Wn.2d 379, 385, 213 P.2d 305 (1949) (prosecutor's statement that "`this will become a city of sodomy'" if jury listened to appellant's argument was not "prejudicial misconduct").
Affirmed.